*1 NELSON, Before NOONAN, D.W.
HAWKINS, Judges. Circuit *2 Escondido, CA, Bove, peti- A.
Kеvin Zazueta-Carrillo. Manuel tioner McCallum, Jr., Assistant Robert D. DC, Division, Gen., Washington, Atty. Civil Bernal, Dir., Im- Asst. Office David Y. DC, Washington, Litigation, migration Pettinato, Attorney, Office Trial Barry J. Washington, Litigation, D. DC, respondent Ashcroft. John when the BIA granting enters its order voluntary departure. I CANBY, GOULD,
Before: *3 BERZON, Judges. Circuit Manuel Zazueta-Carrillo is a native and citizen of Mexico. He is removable from GOULD; Opinion by Judge the United States because he was not by Judge Concurrence BERZON. properly paroled admitted or inspec- after GOULD, Judge. Circuit tion. Immigration When the and Natural- Immigration Appeals When the Board of ization Service sought to remove Zazueta- (BIA) decides that an alien is removable Carrillo, applied he for cancellation of re- States, may from the United the BIA have moval under 8 U.S.C. 1229b. The Immi- discretion grant under 8 U.S.C. 1229c to gration Judge denied application. his Za- privilege “voluntary depar- alien appealed zueta-Carrillo to the BIA. On Voluntary departure ture.” peri- is a time 20, 2001, July BIA affirmed the Immi- od which the during may alien leave the order, gration and, Judge’s pursuant to 8 voluntarily United States rather than be 1229c, granted Zazueta-Carrillo case, removed. we are asked to thirty days depart the United States that voluntary departure peri- decide when voluntarily, beginning on the date of its od begins begin to run. Does it when the order.1 Zazueta-Carrillo timely pe- filed a BIA enters its order granting voluntary tition seeking our review.2 He departure? remained begin Or does it when we in conclude our review of the United States. BIA’s decision Zazueta-Carrillo on an Although alien’s status? held applied twice for a stay removal pending INS, 1088, review, and we denied both motions.3 (9th Cir.1988) (en banc), 2, 2001, On October seventy-four days voluntary departure period begins to run after the BIA granted him thirty days to date, on Congress the latter dramatically depart voluntarily, peti- Zazueta-Carrillo immigration rewrote law eight years after tioned the reopen BIA to proceedings to Congress’s decision. revisions have allow him apply adjustment for of status undermined the Cоntreras-Aragon hold- because his wife had become a naturalized ing, proper so it is for us to reexamine the United States citizen. BIA The denied question of when the petition Zazueta-Carrillo’s ground on the begins. that, today We hold after Congress’s recent that he changes depart had failed to the United period begins pursuant to the grant BIA’s of vol- 1. The BIA’sdecision notified Zazueta-Carrillo separate petition before us on a for review. writing: deny petition We separate unpub- respondent NOTICE: If the fails to lished disposition. memorandum the United States within the time specified, granted by extensions 01-71384, (11/9/01) (Kleinfeld, 3.In both No. director, respondent district ... shall be MсKeown, JJ.), (4/15/02) and No. 02-70259 ineligible years for ten (Kleinfeld, Gould, JJ.), we denied without further relief under section 240B and sec- prejudice requests stays Zazuela-Carrillo’s 240A, 245, 248, tions and 249 of the [Immi- pending removal. originally Zazueta-Carrillo gration Nationality] Act. applied for a August of removal on 01-71384, petition, 2. That thirty-day No. voluntary depar- which chal- lenges the BIA's decision period granted on Zazueta-Carril- ture Immigration Judge claim, lo's cancellation of removal July is also Cir.1999) (“[A]s elements of statu- to those then Zazueta-Carrillo departure. untary involve the do not eligibility, court. tory with this for review filed a discretion, direct review exercise II remains”); Kalaw v. issue, (same). Cir.1997) BIA deci- the main The considering Before we have decide whether not involve the exer- must here did we first issue sion argues government The BIA decided that jurisdiction. of discretion. cise Immi Reform Illegal for ad- could not Zazueta-Carrillo (IIRIRA) Act of 1996 Responsibility justment status because jurisdic preclude provisions contains 1229c(d) for aliens who of 8 U.S.C. bar tion here. departed. The BIA voluntarily have not *4 law, not exercis- following states: provisions simply of these was first
The
discretion,
it denied Zazueta-
when
an
jurisdiction over
have
shall
No court
reopen.
Lafarga,
an
See
for
motion
request
of a
Carrillo’s
denial
appeal from
jurisdiction
... nor
departure
(exеrcising
1215
voluntary
170 F.3d at
of
order
stay of an
a
for review
any court order
immigrant’s
shall
over
any
of
consideration
that she
determination
the BIA’s
because
depar-
voluntary
respect
with
voluntary
claim
depar-
for
per
ineligible
se
was
ture.
a
application of
statute
ture involved
discretionary
1229c(f).
deci-
clause of
was not
opening
The
and therefore
§
1229c(f)
sion).
Cyr,
court shall
533
that no
also INS
St.
U.S.
states
See
plainly
§
kind of
2271,
Ill
1229c(f) (“No
court shall have
Before we decide when the volun
*5
jurisdiction over
appeal
an
from denial of
tary departure period
run,
begins to
we
a request for an order of voluntary depar-
first must decide whether our 1988 deci
ture”)
(emphasis
addеd);
8 U.S.C.
sion
Contreras-Aragon
control
still
1252(a)(2)(B)© (“no
jur-
court shall have
ling.
Contreras-Aragon,
held that
we
isdiction to review ... any judgment re-
the
period did not be
garding
granting
under sec-
of relief
gin to run until after we
our man
issued
tion ...
1229c [voluntary departure]”)
date.
First, we
review.
jurisdictional
Contreras-Aragon,
relied on a
argu-
F.2d at
ment. When
pre-IIRIRA law,
1093-95. Under
decided Contreras-Ara-
we lost
gon,
jurisdiction
it was settled that
we had
to consider
petition
a
for re-
grants
review the BIA’s
view
petitioner
and denials of
whenever the
left the Unit-
voluntary departure. We
that
ed
expressed
observed
States.4 We
concern
if
the voluntary departure period should not
the voluntary departure period seemed
106(c)
4. Section
the old
parture
from the United
person
States
aof
Nationality
provided
Act
could
courts
who
subject
deportation proceed-
[of]
deportation
review
order
if the alien
ings subsequent
taking
to the
appeal
of an
but
departed
"ha[d]
from the United States.”
prior to a decision thereon shall
a
constitute
Contreras-Aragon,
A third rationale Instead, it holding. Contreras-Aragon’s related to then-ex Contreras-Aragon elimi- IIRIRA opposite rule. supports within which period six-month istent directs stays. The statute nated automatic review. See could seek alien “[sjervice review of petition [for of the F.2d 1095-96. Contreras-Aragon, 852 stay the ... removal] an order depart Unit to required an alien Were the court’s an alien removal of (e.g., a BIA decision soon States after ed court unless the petition, on the decision alien would be days), the thirty within 8 otherwise.” orders for review this court to unable added). 1252(b)(3)(B) Even if (emphasis § period Con six-month much of the during filed, per- IIRIRA is for review be petitions, for such authorized gress aliens without to remove as mits INS soon we would lose cause decision, BIA an unfavorable delay after Id. “The effect departed. alien their cases aliens to continue and it allows observed, to shorten “is we policy,” being removed If aliens Id. from abroad. within statutory six-month departure are granted aliens n. and Id. at 1092 review.” may alien seek central concern similarly treated IIRI- to be exists after No such effect —a case), pоsture of the (depending on the days statutory within Under may officers been other executive may review has and because seek which an alien extensions, pe- days. 8 U.S.C. thirty grant shortened Judges 1252(b)(1). Immigration statutory review § Because may far exceed the riod now are and the BIA authorized period. sixty days or up to 120 departure periods of 1172 Contreras-Aragon (as aliens Nationality and Act —then (like amended) aliens being re- provides that an pen- alien faces
moved) ordinarily should leave country if alties the alien voluntarily “fails to de- when executive they officers determine part the United the time depart, must they may and continue their 1229c(d) рeriod specified.” § 8 U.S.C. cases from abroad. added). (emphasis The time “specified sum, ... immigration judge decided 240.26(f) (2002) in a different Board.” 8 context than C.F.R. exists added). today. Congress’s (emphasis Moreover, enactment of IIRIRA the statute changed the landscape of immigration law states that Attorney may “[t]he General all and alleviated four concerns that moti- permit an voluntarily alien depart vated us in Contreras-Aragon. We United States” that “the therefore must reconsider the Contreras- judge enters an granting voluntary order Aragon holding light present-day im- 1229c(b)(l) (em- departure.” Comm’r, migration law. See Landreth v. added). phasis It is executive rather than (9th Cir.1988). is, This judicial officers who decide when an alien course, specific application of the depart. must Neither statute nor the general rule that we are not bound regulations give any designated courts role prior panels decisions of if subsequent process in this of setting the deadline for legislation has undermined those deci- departure. The new statute specifically sions. Washington, United States v. 872 limits the courts’ role. See 8 U.S.C. (9th Cir.1989). F.2d See also 1229c(f) 1252(a)(2)(B)®. Gonzalez-Torres, United States v. Pursuant regula- these statutes and Cir.2002).6 We thus tions, the BIA specified period here dur- assess the main issue in this case on a ing which required Zazueta-Carrillo was clean slate. deрart. stated, The BIA order “the respondent[Zazueta-Carrillo] permitted
IV
voluntarily
from the United
terms,
Stated in the simplest of
States,
expense
without
to the Govern-
after
there is no reason to believe
ment, within
days
the díate
the voluntary
departure period
begins
*7
order or
beyond
extension
that time as
after we finish our
pro
review. Petitioner
may
be-
by the district director.”
poses none. We see none. And we find
added).
(emphasis
That order was en-
statute,
none in any
regulation,
or
July
Thus,
tered
the BIA—the
decision. Most importantly,
Immigra
the
entity charged by
(as
delegation
tion and
from the
Nationality
At-
Act
amended
IIRIRA)
torney General with specifying
and its implementing
the time
regulations
point
period
the
during
other direction. The
which
statute
Zazueta-Carrillo
and regulations provide that the
could voluntarily
executive
depart
specified the
—
branch,
courts,
rather than the
speci
shall
thirty-day period
July
August
20 to
fy when aliens
depart
must
voluntarily.
2001. For us to specify in effect a differ-
In
involving
some
only slight
cases
legisla-
"brings to” the
required depar-
United States
changes,
tive
challenging questions will be
prior precedent).
ture from
given
But
the
presented concerning
depart
whether to
from
striking
vast
changes
and
effected
prior
See,
precedent.
e.g., United States v.
which vitiate
substantially
or
eliminate all the
Gonzalеz-Torres,
(9th Cir.2002)
8 C.F.R.
date. The
heavily
favor of the earlier
ed).
that the
to hold
Wеre
is,
all,
after
voluntary departure
purpose of
after
begin
until
period does
depart without
the alien to
encourage
review,
have the effect
it would
further ado:
departure beyond
extending
authorizing
purpose of
The
officers.
the executive
specified by
deportation is to
in lieu of
deny
power.
courts
regulations
The
departure with-
prompt
the alien’s
effect
of administrative
principles
Basic
Both
to the Service.
out further trouble
doctrine, also
the Chevron
including
benefit there-
and the Service
the aliens
peti
Zazueta-Carrillo’s
deny
require us
depart
if the alien
by. But
interpreted immigra
BIA
The
has
tion.
becоmes
that the
promptly, so
Service
mean
law to
tion
pro-
costly
in further and
involved
the BIA enters
date
periods begin on the
continue his
attempts to
by his
cedures
Here,
specified
BIA
order.
its
here,
benefit to
original
illegal stay
depart
“within
had
Zazueta-Carrillo
if,
years
after
And
is lost.
the Service
(empha
this order.”
,/toto the date
days
with
again
delay, he is
rewarded
added).
BIA later determined
The
sis
opportunity for
failure to
Zazueta-Carrillo’s
spurned, what
previously
he has
thirty-day period violated
similarly
alien
is there
incentive
ap
interpretations and
BIA’s
order.
depart promptly
circumstanced
*8
enti
laws are
the
plications of
opportunity?
the
given
first
intent
Congress’s
to deference when
tled
F.2d
546
Ballenilla-Gonzalez
526
Aguirre-Aguirre,
INS
unclear.
Cir.1976).
has
(2d
concern
policy
This
143 L.Ed.2d
119 S.Ct.
U.S.
IIRIRA,
in
pressing after
become
BIA should
that “the
(holding
its desire to
made clear
Congress
gives
deference
it
accorded Chevron
be
If
vol
the
proceedings.
expedite
mean
concrete
statutory terms
ambiguous
un-
begin
not
period did
untary departure
adju-
case-by-case
process of
through a
peri-
of his
an extension
appear
the administrative
not
It does
7.
od.
requested
ever
record that Zazueta-Carrillo
review,
til after our
aliens
not
would
V
encouraged
promptly.
Worse
today
Our deсision
makes clear that
yet, aliens would be encouraged to file Contreras-Aragon is no longer the law of
petitions for review.
frivolous
An alien this circuit. At the time that Zazueta-
privilege
voluntary depar-
the
delayed
Carrillo
departure
his
beyond the
petition
ture
simply
specified
could
date,
court —how-
howev-
er,
petition
ever
meritless his
still
thereby
stood as the
—and
(even
announced law of
gain
this circuit.
many additional
years)
months
Zazueta-
Carrillo thus
in
expectation
acted
States,
that
in
in open,
the United
judicially
pendency
petition
of his
on the merits
sanctioned
of the Immigration
defiance
would result in
delay
of the commence-
Judge
Congress,
or BIA’s order.
with its
ment
of his
voluntary
departure.
keen
in facilitating
interest
prompt depar-
order,
Under the Board’s
that reliance has
tures, could not have intended this result.
cost
dearly.
him
(and
Finally
ironically), the reasoning When Zazueta-Carrillo moved the
supported
that
holding
in Contreras- Board to reopen
proceeding,
his
Aragon supports a different holding in a Board denied reopening on
ground
post-IIRIRA world. We reasoned in that Zazueta-Carrillo had
voluntarily
not
Contreras-Aragon that
de- departed
within the
the Board had
parture period “[njaturally” should com-
specified.
time,
But at the
it does not
mence the moment that
deliberation
appear that the Board
cognizant
merits of voluntary departure concluded.
Zazueta-Carrillo’s
to review his
Before
removal order was pending in this court.
moment
occurred when we
Board
issued our
therefore had no occasion to
whether,
consider
mandate.
Now
largely
light
fact
has
Contreras-Aragon was
books,
still on
abolished
review of voluntary de-
Zazueta-Carrillo’s
for voluntary
parture, that moment occurs when the Im-
should commence at a later
migration Judge
grants
or BIA
time
reason of
his pending
departure, and
later.
not
byor
court
reason of the tempoprary
plain
Because of the
language of the
stay
place
of removal in
at the time he
immigration statute and its regulations,
apply
moved
for adjustment of status.
respect
branch,
owed the executive
Chouliaris,
In re
16 I. & N. Dec. Cf.
(1977)
Congress’s
intent
authorizing
(tolling
volun-
running
of time for volun
tary
tary departure
procedure,
set
Immigration
we hold that
Judge
BIA).
appeal
is taken to
voluntary departure period begins when an
or the BIA
Judge
enters an
circumstances,
these
we deem it ap-
order granting voluntary departure.8
propriate to vacate the order of the Board
power
Whether
stay
we have
an alien’s
start of the
departure period,
voluntary depаrture period while we review a
analysis
would
scope
shift
of our
removal order is not an issue in this case.
equitable power, which
at issue here.
applied
Zazueta-Carrillo
for a
of removal
Ashcroft,
Andreiu v.
alien’s or nothing the statute There is coun- leaving the consideration critical a precluding such regulations applicable petition. longer voids try no departure period as stay of the a granted relief however, interim empha- part of the separately, I write appropriate. The time stay of removal is court retains that this my conviction size periods of limit on stay the availabili- equitable 1229c(b)(2) if the contained period a ty of ending starting or date. not refer to justify case underlying of an alien’s merits Rather, simply prescribes that the statute It order. is or her a of his removal stay voluntarily ... “[p]ermission to that the case to the result critical exceeding 60 period a valid for a shall not be was denied applied for and petitioner underlying regulations days.” Nor do thus de- This has removal. court stay of for vol- granted when the indicate merits petitioner’s termined end, as begin untary departure is stay a support strong enough was not time opposed to the total presented, question only removal. place. is to take
therefore,
petitioner’s
whether
240.26(e) (“If voluntary depar-
tolled, 8 C.F.R.
automatically
departure grant
pro-
at the conclusion
Contreras-Aragon,
ture
under
it had been
judge may grant
ceedings, the
petition for
a
because there was
simply
days.” (emphasis
not to exceed
I
with
agree
pending in this court.
review
added)).
automatic toll-
conclusion
opinion’s
absent an
applies,
least
longer
ing no
the statute and
as far as
Consequently,
otherwise.
decision
administrative
concerned,
or all of
some
are
regulations
af-
could ensue
departure period
post-IIRIRA
Under
If a
court.
by this
ter
decision
however,
that individ-
I think
case
period of
vol-
is issued
before
who
proceedings
uals in removal
permissible
expires, the
untary
stay of an order
court for review
*10
sixty-day
total
could
accommo-
broadly prohibit
be
not
them and
by tolling
stay
“Congress
dated
while a
of
knew very well how use
to
to”);
place,
‘stay’
remоval is in
without
term
when it
violating
Maharaj
wanted
(9th
963,
Ashcroft,
limit.
v.
tolling
time
Such
makes
295 F.3d
Cir.
2002) (“the
1252(f)
sense,
privilege of
terms in section
voluntary
since the
de-
should
removal,
given
particular,
their
parture
ancillary
precise
to an
meanings
is
order of
interpreted
rather
purpose being
preclude
generally”);
its
to
than
necessity
Reno v. American-Arab
affirmatively
to
Anti-Discrimi
the INS
remove some-
Comm.,
1229c(a)(l) (“The
471,
nation
482, 487,
525 U.S.
one. See 8 U.S.C.
At-
936,
S.Ct.
statute, we retain our equitable traditional Given the absence of statutory pro- power stays to issue preserving the status stays periods hibition of voluntary quo. Andreiu v. Ashcroft, 253 F.3d granted, once the analyses un- (9th Cir.2001) (en banc) (read- 481-82 derlying decisions in Andreiu and Ma- “enjoin” term as not pertaining to haraj support the conclusion that we re- stays, part because there is another tain such authority in cases in which we provision of IIRIRA pertaining stays jurisdiсtion.1 otherwise have Andreiu analysis General, adopted by Andreiu has Weng been Attorney v. U.S. 287 F.3d Reno, two other circuits. See (11th Cir.2002) Mohammed 1337-40 (disagreeing withArc- (2d Cir.2002); Bejjani 309 F.3d dreiu). (6th Cir.2001). 687-89 But see *11 not be able might the alien appeal, because stay- to jurisdiction we retain held if he or she States ordinary equity to return to United our orders under removal through relief successfully petitioned for to rule otherwise noting that powers, cannot, my in particularly, This result mean, cases review. asylum in would native view, with Andreiu. fled their ... who squared “thousands be perse fears of on well-founded based lands Andreiu, conflicting with Aside-from to return to forced will be cution in considerable ten would also bе outcome they will the fiction under danger Maharaj concerned Maharaj. sion with of slow wheels awaiting the while safe stay of authority to issue a this court’s halt.” 253 to a justice grind to American ap consideration of pending removal Reno, (quoting Andreiu at 484 F.3d challenging a a habeas peal from Cir.2000) (Thomas, 1111, 1127-28 F.3d notes, Maharaj order. As removal emphasized the J., dissenting)). Andreiu 2349(b), in INA incorporated § U.S.C. stay facing applicant a danger particular 1252(a)(1),generally permits § by 8 U.S.C. origin will country of that the appears “if it status stays preserving the courts to issue a return to United freely permit not petitions of pending determination quo asylum.” Id. Un grant a of upon Ma See agency judicial review of action. circumstances, status complete a such der authority to haraj, at 965. The stay a of include injunction should quo of the order “suspend operation granted. of includes, 2349(b), in agency,” 28 U.S.C. asylum Otherwise, has an petitioner a who view, enjoin the effec authority to my stay merit a to sufficiently colorable claim that is not itself ancillary relief tive date of to the be restored removal would under review. this court’s decision ante after quo status Maharaj assumed Further, that there her case. or the merits his on to grant special authorization no need authority equitable Without in this court. proceеdings stays pending pe- availability of special mentioned no such The decision volun- riods, time an alien at the appeals regarding habeas authorization would be faced he or she departure tary au- equitable yet our traditional generally, preserve forthwith to having to leave with was thority preserve departure, risk- benefits at stays. permit held to such mer- spite potentially nonreturn would asylum-seeker case. The itorious on the Maharaj also relied once dangers abuse weigh have results, citing An- absurd need to avoid country in which to the confinement and/or dreiu, unsuccess- need for noted “the and against allegedly persecuted the alien removal to avoid asylum applicants ful forfeiting attached penalties Id. claims.” review of their fine a considerable voluntary departure: appli- asylum “need” for certain Again, the “any further prohibition 10-year in the just to avoid 240A, cants is and sections under this section relief to their going back 1229c(d).2 to avoid abstract but 249.” 8 U.S.C. so, volun- they If do origin. countries in these circum- An otherwise, matter practical as a tarily asylum void could effect stances volun- during period of failure post-IIRIRA Under the $5,000. $1,000 See 8 post- tary departure is $500 must be regime, a bond of least 1229c(d). 8See days of the IJ’s order. within five ed 240.26(c)(3). penalty for The civil C.F.R. futile, appeals may *12 then- they may as Lindblade, Appellant, John very consequences suffer in their they sought homelands that avoid
applying asylum the United States. Nancy Knupfer, Trustee, Appellee. Finally, the fact that IIRIRA’s language 01-56319, Nos. 01-56384. commits the voluntary departure decision to the executive branch limit our United States Court of Appeals, equitable authority to grant a stay of the Ninth Circuit. voluntary departure period. The statutory language that just discusses Argued removal is and Submitted Nov. unequivocal about primacy executive Filed March making decisions, yet we stay using these orders our equitable authority 1227(a)
all the time. (“Any
alien ... in and admitted to the United shall, upon the order the Attor- General,
ney be. removed if the alien is
within one or more of the following classes ” deportable aliens.... (emphasis add-
ed)). compelled conclusion by the statute
and our case law is that this equita- court’s power
ble affirmatively preserve quo pending
status review of a removal by granting of both the re-
order —
moval order the voluntary
period until the alien’s underlying claim is
adjudicated disturbed IIRIRA.
It is with this understanding I concur opinion.
In re DYER, Thomas James Debtor.
Nancy Knupfer, Trustee, Appellant,
John Lindblade, Appellee.
In re Dyer, Thomas Debtor, James